Commissioner James Danly Statement
October 16, 2020
Docket No. ER20-2343-000
The Commission’s order issued today in this docket addresses a request for a retroactive waiver.[1] Nine other orders issued at the Commission’s October Public Meeting address similar waiver requests.[2] In addition, the Commission issued two such orders on September 30, 2020, shortly before the October Public Meeting.[3] In total, that is twelve orders issued in less than three weeks addressing retroactive waiver requests. I have several concerns about these orders which I have discussed in detail in my dissent issued today in the Sunflower proceeding. I will not repeat that discussion here.
Here, we are granting Upstream Wind Energy LLC’s (Upstream) request for a waiver of the Scheduled Settlement Statement dispute deadline in Southwest Power Pool, Inc.’s (SPP) Open Access Transmission Tariff (Tariff). While such a request ordinarily would be barred by the filed rate doctrine and rule against retroactive ratemaking,[4] in this case SPP’s tariff provides that SPP may correct its settlement statements if so required by the Commission or a court order.[5] This provision provides notice that retroactive adjustments may be required after the settlement dispute deadline, which fits into a recognized exception to the filed rate doctrine and rule against retroactive ratemaking.[6]
While I concur in the result of the order in this proceeding, I am writing separately because many of the orders issued by the Commission today and in the last three weeks grant retroactive waivers that do not fit into any of the recognized exceptions to the filed rate doctrine and rule against retroactive ratemaking. There is no explanation either in this order or those other orders why the Commission references these exceptions in some orders but not in others. Nor does the Commission explain why it believes that it is good policy to grant retroactive waivers of certain tariff provisions even when the utility has determined that, unlike SPP in this case, it is inappropriate to provide a provision in its tariff permitting such provisions to be waived retroactively.
For these reasons, I respectfully concur.
[1] See Upstream Wind Energy LLC, 173 FERC ¶ 61,057 (2020).
[2] See Pac. Gas & Elec. Co., 173 FERC ¶ 61,051 (2020); Borrego Solar Sys. Inc., 173 FERC ¶ 61,052 (2020); Mariposa Energy, LLC, 173 FERC ¶ 61,053 (2020); Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Sunflower); Midcontinent Indep. Sys. Operator, Inc., 173 FERC ¶ 61,055 (2020); Pub. Serv. Elec. & Gas Co., 173 FERC ¶ 61,056 (2020); Vineyard Wind LLC, 173 FERC ¶ 61,058 (2020); Columbia Gas Transmission, LLC, 173 FERC ¶ 61,064 (2020); S. Star Cent. Gas Pipeline, Inc., 173 FERC ¶ 61,066 (2020).
[3] See Montana-Dakota Utils. Co., 172 FERC ¶ 61,278 (2020); Lightsource Renewable Energy Dev., LLC, 172 FERC ¶ 61,294 (2020).
[4] See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577-78 (1981); Montana-Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 251-52 (1951).
[5] See SPP Tariff, attach. AE, § 10.1.1(3)(a) (“Resettlements for a given Operating Day will be considered by the Transmission Provider for the following reasons . . . (3) Per FERC or court order (a) The Transmission Provider will resettle Operating Days as required by FERC or court order.”).
[6] See Nat. Gas Clearinghouse v. FERC, 965 F.2d 1066, 1075 (D.C. Cir. 1992).